The English version has been reasonably transposed from the French version,

but there are a few translation and transposition issues. For example “Renvoi” has been translated as “Referral” in Article 26. It would be preferable to

continue to use the word “Renvoi”. Article 19.2(l) “sharing the inheritance”

might be better translated as “Schemes of division”. Reference to “Authentic Instruments” in Article 38.2 should be to “Authentic Documents (or Certified Copies)”. It is to be hoped that a number of improvements and amendments

will be inserted during the negotiation process.

Wills

Although Brussels IV has previously been described both in the Dörner and

23Lagarde Report and in the Green Paper as dealing with Succession and

Wills, the reference to Wills has now been removed. There are now no articles

changing the existing PIL of member states in relation to the formal validity

and creation of Wills. It would seem that we may await another Regulation

(Brussels IV bis?) on this and the topic of Will Registers. Generally, reference

is now to “forms of disposition of property upon death” (disposition à cause de mort) as opposed to testamentary disposition (disposition testamentaire). Presumably this change is to avoid classification problems as to whether a

particular disposition, such as the French Donation entre époux, is a testamentary one or not.

The removal of the formerly proposed article 17 dealing with the PIL for formal

validity of Wills has left an unsatisfactory position. We appear to have the

peculiar effect that a Will will generally be formally valid under the old

individual and conflicting rules. Thus the form of a Will may be valid in for

example the UK and France, but not valid in Malta. However, since Article 26

abolishes Renvoi, a choice of law to be effective under Article 17.3 must be in

a “form of disposition of property upon death” made in accordance with the

The position regarding revocation of Wills is equally unfortunate. Article 19.2(k) has the effect that the law governing revocation is that of the applicable law at death. Whether a Will has been revoked or affected by marriage, the birth of a first child or destruction would not be known until the applicable law is decided at death.

The rule relating to the modification or revocation of a choice of law, under Article 17.4 is equally opaque. It would appear that the relevant applicable law is that at death rather than of the determined law. This appears entirely circular, since it is to be the applicable law that governs these issues, and the validity or otherwise of the choice of law needs to be decided, before it can be decided as to what is the relevant applicable law.

All of these provisions are far from ideal and it is to be hoped, will be amended during the negotiations. It would perhaps be more sensible if Articles 17.3 and 17.4 were amended so that the determined law (including its PIL, i.e. not excluding renvoi) should govern the existence, validity,

modification or revocation of a determination of applicable law. Alternatively, Article 26 which abolishes Renvoi could be amended so as not to apply to the

validity of the creation, modification or revocation of a form of disposition upon death and thus existing PIL rules could continue to apply.

CapacityArticle 19.states that the applicable law will govern by 19.2(c) “the capacity to

inherit” and by 19.2(d) “the particular causes of the incapacity to dispose or

receive”. However, Article 1.3(b) makes it clear that notwithstanding these provisions, the question of “the legal capacity of natural persons” is excluded from the scope of the Regulation. The logical interpretation is that references in Article 19 are to issues of capacity other than the legal capacity of natural persons. This does tie in with the limits of the 2000 Hague Convention on the International Protection of Adults.

residence as unsatisfactory since it is a term that is to have a uniform

meaning throughout the European Union and subject to interpretation by the

Court of Justice of the European Union, and yet it is not currently clearly

defined and therefore may in practice have a different interpretation by the

courts in different member states.

This may well be a matter of particular concern to those member states

currently using the connecting factor of nationality.

For the United Kingdom however, where we are familiar with the connecting

factor of domicile, this should be of less concern. The term “habitual

residence” is currently used in other EU Regulations and in various Hague

Conventions. The definition has been considered by the High Court in

4matrimonial proceedings in the case of Marinos and set out a number of

guidelines to be used in difficult circumstances:

? EU habitual residence is defined more by the centre of a

person’s interests than by a particular duration of residence;

? although a person may be resident in more than one state

at any particular time there can only be one EU habitual

residence at any time;

? in the same manner as a change in domicile, EU habitual

residence can be lost and gained within one day. The existing definitions of domicile within the United Kingdom are different in

Scotland and in England & Wales and have much uncertainty attached. The

1985 proposals of the Law Commission of England & Wales for changes to

the law of domicile were not implemented, whilst the Scottish Law

Commission proposals have been partially implemented. The definitions in the

United Kingdom are different to those in other jurisdictions such as the United

States, Australia, New Zealand or India. Reform of the existing law of

domicile is urgently needed in any event.

4Marinos v Marinos [2007] EWHC 2047

To the extent that individual circumstances might create any uncertainty as to

a person’s habitual residence, clients can of course exercise their option to choose the applicable law to be that of their nationality. It is unfortunate that

Article 17.1 only gives a choice of nationality and does not permit a choice of

the habitual residence at the time of choice. This would perhaps have

resolved other issues, but appears to be politically unacceptable.

Article 28.1 deals with the position of the United Kingdom and Spain which

are states with several territorial units each having its own rules of succession.

Whether a UK citizen could choose any of the laws of England & Wales,

Scotland or Northern Ireland without any further connection, is currently

unclear.

Within the United Kingdom, Article 28.2 makes it clear that the United

Kingdom would not be obliged to apply Brussels IV between the individual

jurisdictions within the United Kingdom. In view of the unsatisfactory and

unresolved existing conflicts within the United Kingdom it would seem

unfortunate if Brussels IV were to apply between the United Kingdom and

other member states but not within the United Kingdom which would then

have continuing mismatches of connecting factors, renvoi and between

unitarian and schismatic systems.

European Certificate of Succession (“ECS”)

After a great deal of promotion and publicity regarding the ECS, these would

now seem to be optional documents that may prove of some value, but have

little direct effect. However, thought will need to be given to the interaction

between the effects provisions of Article 42.3 and 42.4 and the creation

provisions of Article 36.2 stating that “The use of the ECS shall not be

obligatory. The certificate shall not be a substitute for internal procedures.”

There is room for conflict here.

Personal Representatives

The differences between States that have separate administration and those

that do not, do generally seem to have been resolved as far as they can be by

Article 21. However, this will still leave a number of issues. Article 19(g) needs

to be extended to include the obligations and protections of executors and

administrators. English internal law may need to be amended to impose a

duty on personal representatives to administer the whole of the succession

with the European Union and in return the protection given by section 27 of

the Trustee Act 1925 needs to be similarly extended.

If the UK and Ireland choose not to opt in, one wonders whether Article 21

would continue to be retained in the Regulation.

Gifts and Inheritance Contracts

The major problem as envisaged is in relation to clawback.

Recital (9) reminds practitioners who may not have yet been aware that the

Rome I Regulation on contractual obligations effective from 17 December

2009 applies to the question of the validity of a gift. The Rome I Regulation

does contain choice of law provisions and restrictions on such choice and

limitations due to public policy. .

Under Article 18 of Brussels IV, the validity of inheritance contracts which are

valid either under the law of the testator’s habitual residence on the date they are created, or by virtue of a prior valid choice of law, cannot later become

invalid, by a change of habitual residence or amendment of the choice of law.

The words “the law which, under this Regulation, would have been applicable to the succession of that person in the event of their death on the day on

which the agreement was concluded” leave some uncertainties.

Article 18.3 seems to imply that a choice of law can be made by the parties in

the inheritance contract, but limited to that of the nationality of the relevant

testator.

However, it is uncertain as to whether any separate choice of law must be made on a day prior to the date of the inheritance contract. Is the deemed death to be necessarily after or before the time of executing the contract? It would be clearer to state that “the law which, under this Regulation, would

have been applicable to the succession of that person in the event of their death immediately after the agreement was concluded”.

In contrast to inheritance contracts, gifts can become subjected to different clawback rules by virtue of a change of residence. Article 19(j) is the culprit. The applicable law governs “any obligation to restore or account for gifts and the taking of them into account when determining the shares of heirs”.

Some have argued that the issue of clawback is a unique problem for the United Kingdom. However, in theory, clawback already exists in the United Kingdom both under insolvency legislation and under the law of England & Wales and Northern Ireland under the 1975 Inheritance (Provision for Family & Dependents) Act and the 1979 N.I. Order with six year time limits. Equally, the trust industry, appears to cope (although with grumbles) with the existing clawback powers of the English divorce courts.

In practice, the issue is one that affects most EU Member States, many of which have different rules for gifts to heirs and to non-heirs. In the Netherlands, clawback is limited for gifts to non-heirs made within the 5 years before death and is a monetary claim rather than a claim to the asset itself. In Austria the period is 2 years. In Germany, the time limit is one of ten years, with a tapering provision of 10% per year. In France, there are no time limits and the value of the asset is that as at the date of death, even though the claim is now a monetary claim.

One proposal was that the gift should be governed by the law of the habitual residence as at the date of the gift. As already stated, this solution has been partially incorporated in Article 18.1 in relation to the validity of succession agreements.

It is inevitable that other Member States will need to find a solution to this issue. One could suggest that public policy in individual Member States should be able to limit claims to the period applicable in their own internal law, thus limiting such claims in England and Wales to 6 years before death.

Alternatively or in addition, the concept of Inheritance contracts might be introduced into UK internal law. In the same way that the pressure for recognition of pre-nuptial contracts is growing in England & Wales, there is no reason why families should not also be able to plan their succession issues and, subject to suitable safeguards, contract out of 1975 Act rights. Article 2(c) has a very broad definition of inheritance contracts.

Alternately, if a gift is made and an obligation included for the donor to execute a Will including a choice of English law and not to revoke such provision, is such a contractual obligation a matter for Rome I or Brussels IV?

The recent dispute between Dr Gibbs and the RSPCA in relation to her mother’s farm in Northallerton highlights the fact that obtaining consent from

spouses and children to significant gifts to charity or elsewhere, might be a sensible provision reducing the likelihood of later litigation.

Public Policy

The other lurking issue is whether Muslim and other religious inheritance laws will be enforced if some States regard them as being discriminatory and thus in breach of Article 21 of the Charter of Fundamental Rights of the European Union to the extent that the Charter is directly enforceable under the Lisbon Treaty (subject to the United Kingdom, Polish and Czech opt outs under Protocol 30). Recital 34 touches on this point. Will this also mean that same sex and mixed sex couples may claim to be discriminated against in Member States that do not recognise same sex marriage or non-marital registered relationships?